Michael Harris is a writer, journalist, and documentary filmmaker. He was awarded a Doctor of Laws for his “unceasing pursuit of justice for the less fortunate among us.” His eight books include Justice Denied, Unholy Orders, Rare ambition, Lament for an Ocean, and Con Game. His work has sparked four commissions of inquiry, and three of his books have been made into movies. He is currently working on a book about the Harper majority government to be published in the autumn of 2014 by Penguin Canada.

Last week, Borys Wrzesnewskyj got the legal equivalent of a penalty shot in overtime, a trip to the Supreme Court of Canada.

The former Liberal MP hit the post and went on to lose the legal game 4-3. Wrzesnewskyj had wanted the court to sustain an earlier judicial ruling that had declared the 2011 election victory of Conservative Ted Opitz in Etobicoke Centre null and void.

Ted Opitz hit the inside of the post, the puck skittered across the goal line, and the red light flashed. Game over. But the Supreme Court, in a divided and historic ruling, may have missed the net.

Let’s get it crystal clear from the outset. Not here to whine about the legal bounces. Ted Opitz and Stephen Harper won, Borys Wrzesnewskyj and a lackadaisical Liberal party lost. Given its epic bungling and story-changing in this matter, Elections Canada got an undeserved break from a deeply divided court. That’s the system. And it’s final.

But there is no reason for anyone to raise a champagne glass and pretend the wider matters raised in this case have been settled: the fact is, no one can claim outright victory in an appeal as divisive and fraught with extra-legal consequences as this one.

First, the best the court itself could achieve was the closest of split decisions. That will leave the public more divided than the court. Not only that, but Chief Justice Beverley McLachlin believed Opitz’s cross-appeal of the earlier Ontario Court of Justice ruling should have been thrown out. In other words, there should have been a by-election where the people could decide who they send to parliament.

It is not often that the Chief Justice finds herself writing the dissenting reasons in a Supreme Court decision, especially under McLachlin, where unanimous rulings have outnumbered split decisions. And almost never is that dissent expressed with such withering disdain as it was last week. Justice McLachlin frankly didn’t like anything about the “after-the-fact information” brought forward by Elections Canada to argue that the results of the election in Etobicoke Centre should stand and Ted Opitz should continue to be the MP.

“First, the evidence is not relevant to the matter before this Court…after-the-fact information that a non-entitled voter was qualified is not relevant to whether he was entitled to receive a ballot on election day … Votes were set aside in this case because of failures in the registration and identification prerequisites of entitlement. These cannot be remedied by after-the-fact proofs of qualification…”

Chief Justice McLachlin’s logic is hard to argue – without the voter establishing his qualifications in an approved manner prior to voting, doesn’t the Act clearly state that he is not entitled to vote? It does. But her deadliest analysis was aimed at Elections Canada, the agency that came up with this dubious “fresh evidence” at the eleventh hour of the process.

“The reliability of the evidence is questionable. All that Elections Canada has done is attempt to discern names that are handwritten in the poll book, and type them into the NROE database [National Register of Electors] to find the closest match. Some of the names typed in are significantly different from their closest match, suggesting that the person in the NROE is not the person in the polling book. It is also entirely possible that handwritten names have been misread, or that two individuals have the same name…”

In the end, the Chief Justice made an even stronger point. Even if this after-the-fact, “untested” evidence were accepted as relevant and reliable, it didn’t affect the simple math at play. If all 19 votes that Elections Canada claimed had been wrongly set aside by the application judge were in fact counted, that would still leave 46 votes that had been properly set aside. In other words, more than enough votes to annul the election result in a riding that had been decided by a mere 26 votes.

When the Chief Justice of the Supreme Court has worries about the relevance and reliability of evidence in a case touching the integrity of the electoral system, no one should be surprised if the public begins to detect the smell of tainted tuna in the air.

And that is a pity because what the Supreme Court decided last Thursday was certainly not only about the integrity of the vote in Etobicoke Centre in the May 2011 General Election. Like a stone cast into a pond, every decision of the Court sends out wave after wave of concentric ripples. Major decisions like this one send out shockwaves.

Who will now go to court to reverse a suspected improper result at the polls, with the costs so terribly high and official bungling now not only tolerated but protected?

How will the court’s decision do anything but encourage political parties to use all the new weapons of mass deception at their disposal in the effort to engineer elections results, knowing those results are almost impossible to overturn?

And how is democracy better served by having the integrity of questionable election results decided by judges rather than by the people?